Karr v. HefnerKarr v. Hefner
The Clean Water Act (CWA),
I. BACKGROUND
This is the second action that Plaintiffs have brought, against Defendants in the United States District Court for the Eastern District of Oklahoma. Both complaints alleged “wrongful and illegal construction, reconstruction, operation and maintenance of numerous oil and gas [locations] throughout the Potato Hills in La-timer and Pushmataha Counties in Southeastern Oklahoma causing many sources of pollution to be created.” ApltApp. at 1, 640. Plaintiffs first attempted to send Defendants the required notice on April 12, 2004, and they first filed suit on June 24, 2004. The distinct court dismissed Plaintiffs’ initial action without prejudice on September 28, 2004, holding that it had no jurisdiction because Plaintiffs’ notice letters were insufficient under
Plaintiffs’ approach can best be described as a “shotgun” method of citing to the entirety of the CWA, with highlighted references to particular sections and federal regulations (some of which apparently have no application to the oil and gas exploration taking place in the Potato Hills area), coupled with generic references to “construction,” “pollutants,” “hazardous pollutants,” “streams and rivers of the Potato Hills,” and “dredged wetlands.” Additionally, no dates are alleged, no attempt is made to link specific violations with individual violators, and no attempt is made to link specific violations with listed well sites. This type of Notice is deficient because it (1) fails to identify the specific standard, limitation, or order violated, (2) fails to identify the activity constituting the violation, with reference to the point source of any discharge and the pollutants at issue, (3) fails to identify the dates on which the alleged violations occurred, аnd (4) fails to link specific violations with violators and locations.
Aplt.App. at 644-45 (footnotes omitted).
Plaintiffs sent a second round of notice letters to Defendants on November 14, 2004. They also sent copies of the letters to the EPA and the Oklahoma Department of Environmental Quality, as
On March 15, 2005, the EPA filed an action in the Eastern District of Oklahoma against two of the GHK Defendants (The GHK Company and GHK/Potato Hills Limited Partnership, which we shall refer to collectively as GHK). At the same time, the EPA submitted a proposed consent decree between itself and GHK. As the district court later summarized:
The Consent Decree was the product of an extensive investigation by the EPA into alleged CWA violations in the Potato Hills area and the resulting negotiations with GHK. On May 16, 2005, this Court approved the Consent Decree which has as its underlying purpose the resolution of all claims that GHK violated the CWA with respect to well sites in the Potato Hills area. Among other things, the Consent Decree (1)"enjoins the discharge of pollutants into waters of the United States in violation of ...33 U.S.C. § 1311(a) ; (2) requires GHK, at its own expense, to restore and stabilize the well sites to prevent further erosion and water contamination and/or mitigate damages caused by their construction activities at thirty-two sites under GHK control and ownership; (3)orders GHK to comply with the terms and conditions of applicable CWA permits during the construction of drill sites in the future, including, among other things, the development and implementation of a Stormwater Pollution Prevention Plan and the application of best management practices to minimize or eliminate stormwater discharges from the site; and (4) requires GHK to pay a $325,000 civil penalty.
Id.
at 271-72. Although Plaintiffs had the right under
Later on the same day on which the EPA filed its enforcement action, Plaintiffs filed their second complaint. The complaint raised three claims under the CWA: (1) construction at well locations without a stormwater permit, in violation of
The GHK Defendants moved to dismiss the complaint against them on the ground that the EPA’s pursuit of the consent decree qualified as diligent prosecution under
Plaintiffs’ response to the motion to dismiss did not contest any of these specific contentions concerning their three claims. Instead, to counter the diligent-prosecution defense, they challenged the timing of the EPA’s action and its choice of defendants, and they raised the since-abandoned argument that
After a motion from defendant Wynn-Crosby, the district court dismissed the remaining defendants (Wynn-Crosby, KCS, and El Dorado) on September 9, 2005. The court held that it had no jurisdiction to hear the complaint because Plaintiffs’ notice letters were again insufficient. (Because the court determined that it lacked jurisdiction, it dismissed the claims against KCS and El Dorado even though they had not themselves moved for dismissal.) The court found the notices defective for substantially the same reasons as before; in particular, it held that the notices “fail to identify the specific standards, limitations, or orders alleged to have been violated,” Aplt.App. at 284, and “fail to adequately identify the activities which allegedly constitute the violations,” id. at 287.
II. DISCUSSION
The CWA authorizes citizen suits “against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under [the CWA] or (B) an order issued by the [EPA] or a State with respect to such a standard or limitation.”
No action may be commenced—
(1) under subsection (a)(1) of this section—
(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the [EPA], (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or
(B) if the [EPA] or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.
* * * *
Notice under this subsection shall be given in such manner as the [EPA] shall prescribe by regulation.
We review de novo the meaning of
diligently prosecuting
under
A. Diligent Enforcement
Under
Plaintiffs do not dispute that the EPA pursued enforcement of the CWA against GHK. But they urge four reasons why the EPA’s actions do not foreclose their claims: (1) the EPA did not file its action within 60 days of Plaintiffs’ notice; (2) the consent decree between the EPA and GHK did not address violations at all 37 well sites named in their complaint; (3) the cоnsent decree addressed stormwater and wetlands violations but not point-source-discharge requirements under the CWA; and (4) the consent decree names only two of the GHK Defendants. We address each
1. Diligence Under
The CWA gives primary enforcement authority to the EPA and state enforcement agencies. Under
Particularly when the EPA chooses to enforce the CWA through a consent decree, failure to defer to its judgment can undermine agency strategy. If a defendant is exposed to a citizen suit whenever the EPA grants it a concession, defendants will have little incentive to negotiate consent decrees. The Supreme Court has recognized the importance of deference to the EPA’s bargains:
Suppose ... that the Administrator agreed not to assess or otherwise seek civil penalties on the condition that the violator take some extreme corrеctive action, such as to install particularly effective but expensive machinery, that it otherwise would not be obliged to take. If citizens could file suit .., in order to seek the civil penalties that the Administrator chose to forgo, then the Administrator’s discretion to enforce the Act in the public interest would be curtailed considerably.
Gwaltney,
Allowing the EPA to compromise does not strip citizens of their role in helping to bring about remedies for CWA violations. Indeed, the Department of Justice’s regulations entitle citizens to comment on pending environmental consent decrees.
See
In sum, our evaluation of the EPA’s diligence is quite deferential. Citizen-plaintiffs must meet a high standard to demonstrate that it has failed to prosecute a violation diligently.
See, e.g., Scituate,
2. Enforcement Against the GHK Defendants
[3] In light of our deferential review of the matter, we do not hesitate to hold that the EPA’s prosecution against the GHK Defendants was diligent. The EPA chose to investigate and reach a settlement with GHK concerning essentially the same violations alleged in Plaintiffs’ complaint. From thе uncontested assertions of the GHK Defendants in district court, it appears that the prosecution was not only diligent but vigorous and thorough; indeed, in some respects the EPA appears to have accomplished more through its consent decree than Plaintiffs sought to achieve on their own. We reject Plaintiffs’ four challenges to the district court’s determination of diligence—delay, inadequate coverage of sites, inadequate coverage of violations, and inadequate coverage of defendants.
a. Delay
Plaintiffs argue that the EPA’s action cannot bar their complaint because the EPA did not file its suit within 60 days of when they sent notice of their claims. But
b.Coverage of Sites
Plaintiffs contend that the EPA’s enforcement action against GHK was not diligent because the consent decree addressed only between 19 and 21 of the 37 sites listed in Plaintiffs’ complaint. (Plaintiffs’ complaint in fact lists only 36 sites; one is a duplicate.) As we have noted, however, we do not evaluate the EPA’s diligence by requiring that its accomplishments track those sought by the citizen-plaintiffs.
In any event, Plaintiffs have not established that the EPA failed to pursue diligently all relevant sites named in their complaint. For example, regarding Plaintiffs’ stormwater and point-source-discharge claims, the GHK Defendants asserted in their motion tо dismiss, and Plaintiffs did not dispute, that the consent decree addresses all GHK-related sites governed by the CWA’s stormwater and point-source-discharge regulations. As for the wetlands-permit claims, it was the GHK Defendants’ uncontradicted assertion that the EPA found no violations at nine of the twelve GHK-related sites listed by Plaintiffs and that the consent decree required mitigation at the other three sites, as well as at several other sites, including sites not listed by Plaintiffs. Nothing in the record indicates that the district court clearly erred in its assessment of the consent decree’s aim — that is, that the consent decree “has as its underlying purpose the resolution of all claims that GHK violated the CWA with respect to well sites in the Potato Hills area.” Aplt.App. at 271-72.
c. Coverage of Violations
Plaintiffs argue cursorily in their opening brief on appeal that the EPA was not diligent because it prosecuted only “storm-water and wetlands violations,” whereas Plaintiffs “seek to recover as well for violations of the point source discharge requirements of the CWA.” Aplt. Br. at 23. But Plaintiffs did not make this argument in their brief before the district court, leading the district court to find broadly that “Plaintiffs do not take direct issue with the EPA’s diligent prosecution as manifested in the Consent Decree.” Aplt.App. at 274. Because this contention was not preserved below, we do not address it on appeal.
See Parker v. Scott,
d. Coverage of Defendants
Plaintiffs also contend that the EPA’s prosecution, which resulted in a consent decree against only two of the GHK Defendants, should not bar citizen lawsuits against the remaining GHK Defendants. We disagree.
The discretion we afford the EPA extends to its choice of defendants.
The obligations of this Consent Decree shall apply to and be binding upon GHK, including its officers, directors, successors and assigns. GHK will ensure that the оbligations of this Consent Decree will be fulfilled, either by GHK directly, or by its officers, directors, agents, employees, servants, or another person, firm, association or corporation who is, or will be, acting in concert or participation with GHK, except any one who is merely a Co-Owner of Interest in a Site, whether or not such person has notice of this Consent Decree.
Aplt.App. at 294. Plaintiffs have not indicated why the EPA’s choice of defendants showed that its prosecution of violations was less than diligent.
For the above reasons, we affirm the dismissal of all the GHK Defendants from Plaintiffs’ action.
B. Adequacy of Notice Letters
Because we affirm the dismissal of the GHK Defendants on other grounds, we consider the adequacy of Plaintiffs’ notice letters only with respect to the remaining defendants — Wynn-Crosby, KCS, and El Dorado. We note in passing, however, that Plaintiffs sent some of their notice lеtters to all Defendants and sent others to the GHK Defendants and at least one other defendant. Accordingly, our discussion of the notice letters might well apply to the GHK Defendants also.
The district court dismissed the non-GHK defendants on the jurisdictional ground that the notices did not satisfy
1.
The language of the regulation does not suggest that the notice may be good enough if it generally orients the agency or violator as to the type of violation.... [T]he recipient of the notice must understand from the notice what the citizen is alleging — not what the citizen could allege if the citizen knew more or cared about other possible transgressions.
Comparison with notice letters held to be sufficient can be instructive. In reversing a decision that a notice letter was insufficient because it did not identify particular dates for alleged violations, the Ninth Circuit noted that the letter “describes the problem of storm water pollution in the [relevant river;] specifically identifies pollutants associated with [the defendant’s] operations; describes in detail the sources and practices that lead to the discharge of contaminated storm water from [the defendant’s] site; ... suggests solutions for [the defendant’s] storm and non-storm water discharge problems, including grading, berming, roofing, structural controls to prevent the discharge of contaminated water, and a filtration system to treat contaminated water”; and discusses “Permit requirements in detail and directs the reader’s attention to the specific Permit sections that explain what is required.”
Waterkeepers N. Cal. v. AG Indus. Mfg.,
Similarly, the Third Circuit held valid a letter that contained a chronological list of particular violations.
See Pub. Interest Research Group v. Hercules, Inc.,
2. Plaintiffs’ Notice Letters
Plaintiffs’ notice letters exhibit no such specificity. They are hardly more helpful than a letter telling Defendants merely that they have violated the CWA at each listed well site. Aiming for breadth of coverage, the letters substitute sweeping language for the particularity required by
To illustrate, we will consider a representative notice letter, reproduced in full in a footnote,
3
that alleges violations of
a. Point Source
To begin with, identifying' a point-source-discharge violation requires identifying a point source. The CWA defines a point source as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”
b. Laws Allegedly Violated
Just as the letters fail to specify a point source, they fail to identify with appropriate specificity the lаws that Defendants allegedly violated. Perhaps because identifying particular regulations poses such a small burden for potential plaintiffs, notice letters must provide “sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated.”
Paragraph 1 states that Defendants caused constructiоn at the well site “[wjithout obtaining coverage under a general, state or regional Clean Water Act permit for the discharge of pollutants, including heavy metals, sand, rocks, and mud, from a point source at the TAMI No., 1-26.” Aplt.App. at 204. The paragraph fails to cite a specific statute or regulation that requires Defendants to “obtain[ ] coverage under a general, state or regional Clean Water Act permit.”
Paragraph 2 alleges that Defendants have engaged in construction
[clausing a continuous release of pollutants, including hazardous and toxic pollutants, as indicated by the presence of acid rock drainage at the TAMI No.. 1-26 flowing into the waters of the United States and the tributaries of the Waters of the United States, specifically to the tributary of the NAME NAVIGABLE RIVER in violation of33 U.S.C. §§ 1311 , 1317 and 1341, and other statutory and regulatory provisions of or under the Clean Water Act, including orders and regulations, without limitation 40 C.F.R. pts. 122, 123,124,125,129 and131; 40 C.F.R. §§ 122.28 ,122.29; and/or any potentially applicable general permit.
Id.
at 204-05. Aside from the failure to identify the waters affected (the language “NAME NAVIGABLE RIVER” is evidently an imperative intended for the letter’s author), the paragraph provides no assistance regarding what provisions of a statute, regulation, or permit have been violated. Many of the citations simply do not apply to Defendants. For example, 40 C.F.R. part 123 is entitled “State Program Requirements” and addresses “the procedures EPA will follow in approving, revising, and withdrawing State programs.”
Paragraph 3 of the letter alleges that Defendants engaged in construction “[clausing hеavy metals to continuously or intermittently discharge from the TAMI No. 1-26 into a tributary of Kiamichi River.” Aplt.App. at 205. Again, there is no reference to any statute, regulation, or permit.
Paragraph 4 comes out of left field. It alleges that Defendants have caused construction activity
[w]ithout documenting permit eligibility with regard to endangered species and the maintenance of critical habitat, including identifying whether federally-listed endangered or threatened species, or federally-designated critical habitat may be in the location of the well or the lease road; whether such species or critical habitat may be adversely affected by storm water discharges or storm water discharge-related activities from the project; results of the listed species and critical habitat screening determinations; any correspondеnce for any stage of project planning between the U.S. Fish and Wildlife Service (FWS), EPA, the U.S. National Marine Fisheries Service (NMFS), or others regarding listed species and critical habitat; and a description of measures necessary to protect federally-listed endangered or threatened species, or federally-designated critical habitat.
Id. These allegations may involve the Endangered Species Act, but they do not appear to relate to the CWA. There is not even a hint of where to look in the CWA, or a regulation or permit thereunder, to see what illegality is charged.
Paragraph 5, like paragraph 4, alleges a failure of documentation. Defendants are said to have caused construction to proceed “[wjithout documenting permit eligibility with regard to total maximum daily loads.” Id. This is apparently another ir
Paragraph 6 resembles paragraph 4 in referencing a statute other than the CWA. It alleges that Defendants’ construction proceeded “[w]ithout complying with the National Historic Preservation Act, section 106 consultation for federally permitted construction activities at the TAMI No. 1-26.” Aplt.App. at 205. The notice letter supplies no explanation of how a violation of the National Historic Preservation Act 4 would support a CWA citizen suit.
Paragraph 7, the final paragraph of the notice letter’s Section A (which, recаll, was entitled “The specific point source standards, limitations, or orders alleged to have been violated at the TAMI No. 1-26”), alleges “[discharging pollutants from TAMI No. 1-26 into tributaries of Kiami-chi River without complying with the Effluent Limitations Guidelines and New Source Performance Standards for the Oil and Gas Extraction Point Sources found at 66 Fed.Reg. 6849, et. seq. or any applicable state standards.” Id. But this cited regulation, too, is facially inapplicable to Defendants, for it “applies to existing and new sources that perform oil and natural gas extraction drilling in certain offshore and coastal waters,” 66 Fed.Reg. at 6850 (emphasis added), not to inland sites in Oklahoma. Plaintiffs argue that the regulation is more far-reaching; they point to a section of the regulation entitled “Background,” which explains that the CWA generally “prohibits the discharge of pollutants into navigable waters except in compliance with the statute.” 66 Fed.Reg. at 6852. But the referenced language does not impose a rule; it simply explains the context of the new rules.
There are other deficiencies in this notice letter, but we think it sufficient to hold that it failed to comply with
Similar inadequacies appear in the notice letters for alleged storm-water and wetlands violations. Indeed, the storm-water notices fail to point to any applicable regulation. There is a statutory exemption from stormwater requirements for oil- and-gas activities:
The Administrator shall not require a permit ... for discharges of stormwater runoff from ... oil and gas exploration, production, processing, or treatment opеrations or transmission facilities, composed entirely of flows which are from conveyances or systems of conveyances (including but not limited to pipes, conduits, ditches, and channels) used forcollecting and conveying precipitation runoff and which are not contaminated by contact with, or do not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct, or waste products located' on the site of such operations.
In evaluating notice letters, we are mindful of their purpose: they must allow the prospective defendants to identify the alleged problems within a 60-day period. Even if Plaintiffs’ letters contain individual sentences, deeply buried, that give Defendants some appropriate information — and frоm the foregoing analysis, it is not clear that they do — Defendants could not reasonably be expected to process these letters and take appropriate action within 60 days.
As Plaintiffs note, some courts have held that when a defendant takes remedial measures in response to a notice letter, the letter must have been sufficient.
See Atlantic States Legal Found., Inc. v. Stroh Die Casting Co.,
Plaintiffs also seem to argue that letters that spur an EPA investigation must be sufficient, and they assert that there is “no question” that their notices led to the EPA’s prosecution of GHK. Aplt. Br. at 16. But again they cite no evidence to substantiate their assertion.
III. CONCLUSION
For these reasons, we AFFIRM the district court’s dismissal of the GHK Defendants because the EPA’s prosecution was diligent under
Notes
. The GHK Defendants are (a) Robert A. Hefner, III; (b) The GHK Company; (c) Ramiii-laj, Inc.; (d) The GHK Corporation; (e) GHK Trading and Investment Company, L.L.C.; (f) GHK Trading Company, L.L.C.; (g) GHK/Potato Hills Limited Partnership; (h) The Glebe Group, Inc.; and (i) Glebe Royalty, L.L.C.
. Plaintiffs argued before the district court that their second complaint related back (under
. RE: Notice of Bill Karr, Betty Scott, and Mr. and Mrs. Gene Handleman’s Intent to File Suit Pursuant to Section 505 of the Clean Water Act (the "CWA”),
Dear Prospective Defendants:
Bill Karr, Betty Scott, and Mr. and Mrs. Gene Handleman hereby provide you with this Notice of Intent to File Suit pursuant to the Clean Water Act (the "CWA”),33 U.S.C. § 1365(b) and40 C.F.R. § 135.3 (2004). Provision of such a notice may be required before a lawsuit is filed by the citizens under33 U.S.C. § 1365 . Notice is being provided to ROBERT A. HEFNER, III; THE GHK COMPANIES; THE GHK COMPANY; THE GHK COMPANY, A LIMITED PARTNERSHIP; GHK TRADING AND INVESTMENT COMPANY, L.L.C; GHK TRADING COMPANY, L.L.C; GHK/POTATO HILLS LIMITED PARTNERSHIP; THE GLEBE GROUP, INC.; GLEBE ROYALTY, L.L.C; RAMIIILAJ, LLP (hereinafter the Hefner Companies); WYNNE CROSBY ENERGY, INC, KCS RESOURCES, INC., and EL DO-RADO DOZERS INC. and in the future to those additional persons now unknown who are owners and operators of the wells and associated roads identified herein because you have caused and continue to cause the illegal discharge of pollutants, and are violating the Clean Water Act, and/or are thе owner or operator of the wells and associated roads identified in herein.
A. The specific point source standards, limitations, or orders alleged to have been violated at the TAMI No. 1-26.
1. Without obtaining coverage under a general, state or regional Clean Water Act permit for the discharge of pollutants, including heavy metals, sand, rocks, and mud, from a point source at the TAMI No. 1-26;
2. Causing a continuous release of pollutants, including hazardous and toxic pollutants, as indicated by the presence of acid rock drainage at the TAMI No. 1-26 flowing into the waters of the United States and the tributaries of the Waters of the United States, specifically to the tributary of the NAME NAVIGABLE RIVER in violation of
3. Causing heavy metals to continuously or intermittently discharge from the TAMI No. 1-26 into a tributary of Kiamichi River.
4. Without documenting permit eligibility with regard to endangered species and the maintenance of critical habitat, including identifying whether federally-listed endangered or threatened species, or federally-designated critical habitat may be in the location of the well or the lease road; whether such species or critical habitat may be adversely affected by storm water discharges or storm water discharge-related activities from the project; results of the listed species and critical habitat screening determinations; any correspondence for any stage of project planning between the U.S. Fish and Wildlife Service (FWS), EPA, the U.S. National Marine Fisheries Service (NMFS), or others regarding listed species and critical habitat; and a description of measures necessary to protect federally-listed endangered or threatened species, or federally-designated critical habitat.
5. Without documenting permit eligibility with regard to total maximum daily loads;
6. Withоut complying with the National Historic Preservation Act, section 106 consultation for federally permitted construction activities at the TAMI No. 1-26;
7. Discharging pollutants from TAMI No. 1-26 into tributaries of Kiamichi River without complying with the Effluent Limitations Guidelines and New Source Performance Standards for the Oil and Gas Extraction Point Sources found at 66 Fed.Reg. 6849, et. seq. or any applicable state standards;
B. The activity alleged to constitute a violation at the TAMI No. 1-26.
Continuing construction activities at the TAMI No. 1-26 well site and associated lease roads that have caused and continue to cause discharges of orange colored water believed to contain heavy metals and acids in illegal ways as set forth in "A. The specific point source standards, limitations, or orders alleged to have been violated at the TAMI No. 1-26” causing discharges to a tributary to Kiamichi River.
C. The person or persons responsible for the alleged violations at the TAMI No. 1-26.
All owners and operators of the TAMI No. 1-26 well site and associated lease roads, including the WYNNE CROSBY ENERGY, INC.; KCS MEDALLION, INC.; Hefner Companies and El Dorado Dozers.
D. The location of the alleged violation at the TAMI No. 1-26.
That natural gas well pad and associated lease roads associated with N. 34.69898 (latitude) and W -95.1661 (longitude) as the location information for the TAMI No. 1-26 on file with the Oklahoma Corporation Commission.
E. The date or dates of the violations at the TAMI No. 1-26.
From the first date of construction, approximately 1/10/2001 to present and continuing.
F. Persons Giving Notice.
The full name and address and telephone numbers of the person giving notice are: [Plaintiffs’ contact information.]
Bill Karr, Betty Scott, and Mr. and Mrs. Gene Handleman hereby provide you with 60 days from the date of mailing of this Notice of Intent tо File Suit to respond and to remediate the damages you have caused by failing to follow the mandated point source provisions of the Clean Water Act.
Aplt.App. at 204-06 (formatting altered).
. Section 106 of the Act,
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under [16 USCS §§ 470i et seq. ] a reasonable opportunity to comment with regard to such undertaking.